ALTERNATIVE DISPUTE RESOLUTION (ADR), AN ALTERNATIVE TO LITIGATION

 THE PEACEFUL WAY TO RESOLVE DISPUTES, AN ALTERNATIVE TO LITIGATION.

"See you in Court!” This is a phrase you hear quite often.

To the majority of people, LITIGATION is the only way to solve their ‘legal wahala’ or misunderstanding with the other party. Like the saying goes, “there are so many ways to kill a cat,” so are there other alternatives to litigation. These ‘alternatives’ are the Alternative Dispute Resolution mechanisms like NEGOTIATION, MEDIATION and ARBITRATION. 

You do NOT always need to resort to litigation to resolve a conflict and this is why!

Firstly, whereas litigation strains the existing relationships between the parties, Alternative dispute resolution (ADR) processes strive to mend or restore that relationship. This is simple as ABC, would you sue a spouse you are still in love with during the pendency of the marriage, especially if you still want that relationship to stand the test of time? I believe your answer is no and your first alternative will not be the court.  ADR provides a peaceful alternative to the right-based litigation system.

Secondly, more often than not cases drag in court which is not the case with the ADR mechanisms or processes and thus make them cost-effective with respect to time especially when juxtaposed with the traditional litigation or court system where there is a backlog of cases. Also, the ADR mechanism can be scheduled in such a way that it is at a convenient time for the parties thereby ensuring that the dispute is resolved as quickly as possible.

  Thirdly, litigation is costly both in monetary terms as well as emotionally. A lawyer who is a professional is engaged to represent a party in court, that is, if that party does not want to conduct his or her case himself or herself (unrepresented) and this comes at a fee, not forgetting the numerous court filing fees every time a process is to be filed and served on the other party among other costs which typically borne in litigation. This is not to say that there are no fees incurred in ADR processes, however, ADR is a more affordable option due to its shorter timelines as compared with the extended nature of court proceedings which render litigation a costly venture.

Moreover, ADR processes ensure confidentiality. Unlike in litigation where most matters are decided in open court, ADR proceedings are often held behind closed doors and are thus typically private and only involve the parties. Thus, the conflict is resolved between the parties ‘privately’ devoid of the risk of disclosing sensitive information or a scenario where the parties wash their dirty linen in public is totally avoided in ADR proceedings.

Furthermore, ADR processes afford parties a high level of flexibility and control of the dispute resolution process especially when it comes to matters such as the selection of the mediator or arbitrator, the applicable rules that should apply in the resolution of the conflict, among others which is typically not the case in litigation. Closely linked to this point is the fact that in arbitration for example, the parties are actually free to choose an arbitrator with the requisite expertise in the subject matter of the dispute that has arisen, largely contributing to making of an informed decision in the end as such an arbitrator who doubles up as an expert in the subject area is better poised to appreciate the main issues to be resolved.

Lastly, ADR processes propose more creative outcomes as compared with litigation. ADR provides tailor-made solutions or outcomes which may be out of box or unorthodox and with ADR proceedings, you are better placed to be assured of solutions which can be described as ‘win-win’ and equally satisfy the needs of the parties.

  In conclusion, next time before using the hackneyed phrase “See you in court”, replay all the reasons cited above and you might just have a change of heart and decide to opt for an ADR process instead. True, ADR has a lot of merits as discussed above, however, it may not be the best fit for every situation especially where a legal precedent or public judgement is necessary. All in all, ADR proposes a more amicable and efficient approach to resolve disputes.

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